The National Museums of Kenya (NMK), two politicians and the county government of Kilifi have been restrained by a court from trespassing on a prime parcel of land situated in Mtwapa.
The Environment and Land Court (ELC) also restrained NMK, Mr Haron Ndundi, Kilifi South MP Richard Ken Chonga and the county government from interfering with Mr Adil Salim Awadh’s rights to peaceful, quiet possession, control, ownership, and occupation of the land without first bringing it under the armpit and control of NMK as established by law.
The ELC issued a declaration that the land, known as Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situated at Mtwapa within Kilifi County, is private land registered in the name of and owned by Mr Awadh.
NMK had alleged that the land falls within the purview of public property and had the status of a gazetted national monument.
Justice Evans Makori ruled that the plaintiff (Mr Awadh) had proved that the land,worth Sh150 million,is private property not under the control or restriction of NMK.
The judge ruled that nothing had been shown to indicate that the land was obtained through fraud, acquired unprocedurally or corruptly.
“The alleged setting aside as a national monument or heritage site has not been proved. The suit property has been private land for over a century, as shown by the search certificate and survey report,” ruled Justice Makori.
The court noted that a review of the Gazette Notices shows that a 1935 Gazette Notice relied by NMK was vague and lacked parcel numbers, coordinates, maps, or surveyed boundaries and that on its face, it cannot identify the land as part of the 'ruins on the North bank of Mtwapa Creek'.
The court also noted that NMK’s witness did not rebut the evidence presented by the plaintiff, who called a surveyor who traced the history of the suit property (land) as private land.
It further noted that as correctly asserted by the plaintiff, rights in private land cannot be extinguished by implication or administrative inference.
“Where the State intends to subject private land to public control, it must do so in clear and unambiguous terms and the landowner must be accorded a hearing, that was not done here,” ruled the court.
The court also said that NMK had failed to establish its legal mandate and control of the land and that it must follow proper legal procedures to acquire it (land) and bring it within its purview.
“A review of the evidence adduced by the plaintiff shows that, since this property was alienated as private property, there is no evidence indicating that the owner(s), whether present or past, were required to seek permission from NMK or the responsible Cabinet Secretary to undertake any use, development or improvement,” ruled the court.
The court also ruled that evidence on record affirmed that the plaintiff had shown that the land is private property, with a status dating back to 1922 to date and that no legal process has been adduced to establish it as protected or public heritage site as the gazette notices produced referred to adjacent plots.
Mr Awadh told the court that he was the registered owner and proprietor of the land where he has a residential home.
The plaintiff testified that he purchased the land from a bank by way of a purchase through private treaty sometime on August 23, 2022.
He told the court that after acquiring the land, he later obtained necessary approvals from relevant government offices to construct a perimeter wall along its boundaries.
The plaintiff contended that ever since the perimeter boundary wall on the land was erected, NMK began alleging that it (land) belongs to it (NMK).
He told the court Mr Ndundi, Mr Chonga and the county government also started alleging that the property is public land.
NMK said that the 'ruins on the North bank of Mtwapa Creek,' located across multiple properties, including the land (subject property) were gazetted in 1935 as National Monuments under the then Preservation of Objects of Archaeological and Paleontological Interest Ordinance (now the National Museums and Heritage Act, 2006).
Through its witness, NMK said that the ruins on the North bank of Mtwapa Creek were declared protected monuments because of the rich archaeological and paleontological materials in the area.
It stated that a 2017 Cultural Heritage Impact Assessment noted that the suit property falls within the stated gazetted 'ruins on the North bank of Mtwapa Creek'.
NMK told the court that the acquisition of title to the land in 1937, together with subsequent transfers, including the transfer to the plaintiff in 2022, was illegal, unprocedural, or obtained through corrupt schemes, thereby rendering them null and void.
NMK told the court that should the plaintiff be granted the orders, it is apprehensive that he will continue to destroy the heritage value of the land thereby rendering its (NMK) existence meaningless as its existence is predicated upon the preservation and conservation of the country's heritage.
